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Donaldson MP & Ors V Empey & Neutral Citation No. [2003] NIQB 52 Ref: GIRC3986 Judgment: approved by the Court for handing down Delivered: 7/7/03 (subject to editorial corrections) IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND QUEEN’S BENCH DIVISION ________ BETWEEN: JEFFREY DONALDSON MP, REV W MARTIN SMYTH AND DAVID BURNSIDE MP Plaintiffs; -and- SIR REGINALD EMPEY OBE, LORD MAGINNIS OF DRUMGLASS, JAMES NICHOLSON MEP, COUNCILLOR JAMES RODGERS, DERMOT NESBITT, LORD ROGAN OF LOWER IVAGH, JACK ALLEN OBE, JAMES COOPER, DON McCONNELL OBE AND MAY STEELE MBE JP SUED ON THEIR OWN BEHALF AS OFFICERS OF THE ULSTER UNIONIST COUNCIL AND ON BEHALF OF ALL OF THE MEMBERS OF THE DISCIPLINARY COMMITTEE OF THE ULSTER UNIONIST COUNCIL Defendants. ________ JUDGMENT GIRVAN J [1] The present proceedings arise out of a dispute within the Ulster Unionist Party relating to the future direction of the party in the light of the so-called joint declaration between the British and Irish Governments. Although the dispute raises highly contentious political matters the court has no function of a political nature in these proceedings and must simply determine the legal questions arising out of a decision made by the officers of the Ulster Unionist Council (“the UUC”) to refer the plaintiffs to the party’s Disciplinary Committee and arising out of the interim suspension by the Disciplinary Committee of the plaintiffs. In setting out its decision the court must studiously avoid expressing any view on the merits or otherwise of the political stances adopted by the parties in dispute. The decision of the court 1 must not be interpreted as in any way reflecting a political decision. It is no such thing and although the decision is ultimately in favour of one side and may have political repercussion it is a decision arrived at by an analysis of the law and that alone. [2] The plaintiffs in the proceedings are Jeffrey Donaldson, Rev Martin Smyth and David Burnside who are all Ulster Unionist Members of Parliament. Jeffrey Donaldson is one of the four Vice-Presidents of the UUC and the Rev Martin Smyth is the President. The action arises out of the laying of disciplinary charges against the plaintiffs by the officers of the UUC at a meeting which took place on 26 June 2003. In a letter of 27 June 2003 Mr Raymond Ferguson, writing as Chairman of the Council’s Disciplinary Committee, informed the plaintiffs that the officers of the UUC had referred the following charges to the Disciplinary Committee for consideration: “The officers of the UUC have reason to believe that by opposing the policy of the party and the decisions of the Ulster Unionist Council and by proposing to enter into a relationship with parties opposed to the Ulster Unionist Party and its policies Rev Martin Smyth MP, Mr Jeffrey Donaldson MP and Mr David Burnside MP are acting in a manner detrimental to the best interests of Ulster Unionism and disadvantageous to the best interests of the Council. Further the officers of the Ulster Unionist Council have reason to believe that by refusing to endorse or adhere to the decision of the Ulster Unionist Council the Rev Martin Smyth MP and Mr Jeffrey Donaldson are in breach of their duty as officers generally and of Rule VI.4(iii) in particular.” The letter went on to state that the Disciplinary Committee had met on 27 June 2003 and determined that a further hearing of the Committee should take place at the party headquarters on 17 July 2003 and informed the plaintiffs that they had a right to appear and be heard in person. The letter stated that the Committee’s practice was to allow one supporter in attendance with the party charged (but not a legal representative) and the party charged might also call up to two witnesses in support of his case. The letter concluded by informing the plaintiffs that pending the hearing on 17 July the plaintiffs were suspended from membership of the Ulster Unionist Party with effect from the date of the letter. [3] The background to the disciplinary charges lay in the fact that the plaintiffs by letter of 23 June 2003 had written to the leader of the Ulster Unionist Parliamentary Party, Mr David Trimble MP, informing him of their 2 decision to resign the whip of the Ulster Unionist Parliamentary Party with immediate effect. The plaintiffs stated that this followed the decision of the UUC by a narrow majority to adopt the leader’s position on the joint declaration promulgated by the British and Irish Governments. They alleged that the leader had failed to uphold key Unionist principles and that he was pursuing a policy which they believed was detrimental to Ulster Unionism. They could not support the joint declaration under any circumstances and could not on principle endorse the policy. According to Mr Donaldson’s affidavit the plaintiffs considered that they were bound by their principles to vote in accordance with their conscience and otherwise than with the parliamentary party whip. Mr David Trimble responded to the plaintiffs’ letter of 23 June 2003 stating that the reasons for their action were disingenuous. It was a direct repudiation of the Council’s decision. Their actions were not in the best interests of the party. As officers of the Council the President and Vice-President were obliged by the constitution to “implement the decisions of the Council.” It was impossible for the President and Vice-President to resign the whip and still retain their offices. Mr Trimble stated that he took it that to be consistent their resignation also applied to those offices. [4] The background to the plaintiffs’ decision to resign the whip lay in the meeting of the UUC of 16 June 2003 when the party by a relatively slender majority of 54% to 46% backed the leader’s approach to the joint declaration. [5] Following receipt of the plaintiffs’ letter of 23 June 2003 Mr Trimble requested an emergency meeting of the party officers to be held on 26 June at 10.00am to discuss the implications of the letter. Jeffrey Donaldson as Vice- President of the Council attended. The Rev Martin Smyth did not attend sending an apology since he was at a meeting in London. Jeffrey Donaldson participated in some of the discussions at the meeting but according to his affidavit was “prevailed upon to leave the meeting.” Eventually under protest he did so. He was not re-admitted into the meeting. It was his understanding that the leader proposed that disciplinary charges against the plaintiffs should be referred to the Disciplinary Committee. It was further his understanding that it was agreed that the Chairman and Vice-Chairman of the Executive Committee would “co-opt” any additional members required in consultation with Mr Jim Rodgers. Mrs Roberta Dunlop was as he understood co-opted by this method. She holds views on party policy opposed to the plaintiffs’ views. [6] Mr James Cooper, the Chairman of the Executive Committee of the UUC and who was present at the meeting of the officers, states in paragraph 9 of his affidavit that it was “further agreed at the meeting of the officers on 26 June 2003 that I should consult with other officers in order that we might co- opt further members onto the Disciplinary Committee.” As a direct result of the decision Mrs Roberta Dunlop and the Rev Robert Coulter were co-opted 3 as members of the Disciplinary Committee. The handwritten minutes of the meeting that took place on 26 June 2003 is recorded as stating that Mr Trimble at the meeting suggested that the Chair (referring to Mr Cooper) should have authority (in consultation with others) to arrange other (standby) members of the Disciplinary Committee. Mr McConnell is noted as having said that the Chairman should consult with at least three other members of party officers to include Mr Rodgers. [7] Mr Larkin raised a number of legal arguments challenging various stages and aspects of the decision reached by the officers and with the Disciplinary Committee the first of which was as to the charges referred to in Mr Ferguson’s letter of 27 June 2003 do not accurately reflect charges in respect of which disciplinary powers are available under Rule 19(1). That provision spells out two bases on which the officers may make a referral to the Disciplinary Committee, that is to say there exists reason to believe that the conduct of a member of the party (i) is detrimental to the interests of Ulster Unionism or the Ulster Unionist Party or (ii) is disadvantageous to the objects of the Council. The Disciplinary Committee’s letter refers to the plaintiffs acting in a manner detrimental to the best interests of Ulster Unionism and disadvantageous to the best interests of the Council. Mr Larkin contends that there is a subtle but important difference between the wording of the rule and the wording of the letter. [8] At the officers’ meeting it was clear that the officers were referred to the wording of Rule XIX which Mr Cooper quoted to the officer present. Mr Morgan QC stressed that the proper approach to interpreting and applying the rules set out in the constitution of the UUC should take account of the fact that one is looking at and applying the rules of a working political party. Accordingly in construing and applying the rules the court should avoid an over technical approach to the rules. I accept that in looking at the dispute which has arisen between the plaintiffs and the leadership one must keep one’s feet on the ground and avoid an over technical approach.
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